Spin Control: Court says public has to wait to see early contract proposals

When the Legislature votes to spend public money on a labor deal the government makes, the early proposals leading up to it become public, too, the Washington Supreme Court ruled last week.

Eventually.

For the general public, it’s a bit of an arcane argument. But among some Republican lawmakers and conservative budget hawks, it’s a decision that thwarts one of the white whales they’ve long hunted – an earlier look behind the closed-door contract talks between the state employees’ unions and the governor’s office.

Legislators don’t have a seat at the table when the unions and a governor’s staff at the Office of Financial Management sit down to negotiate a two-year contract in the months before the Legislature debates and passes a biennial budget. They see the proposed final agreement on wages and benefits when the governor submits his budget proposal, usually in early to mid-December, and those figures are available to factor into budgets the Senate and House propose a few months later.

But lawmakers don’t get a look at the proposals that went back and forth at the bargaining table while budget writers are drafting and debating the spending plan that typically is passed in late April.

They can, and sometimes do, propose changes – smaller raises or even cuts – but approving a final budget with those revisions would mean sending the unions and the governor’s office back to the table for a new round of negotiations. And there’s no guarantee either side at the table would agree to those cuts while the clock ticks down to a new state fiscal year on July 1, when a budget with new authorization to pay workers must be in place.

That means an agreement between the governor’s financial managers and the unions is pretty much a done deal.

Recognizing this, Republican lawmakers, and even some Democrats, have long wanted to see the early proposals and counter proposals that were passed back and forth before the final deal was reached. Did the unions ask for too much? Did the governor’s office counter back hard, or was it a pushover?

Along with some open government groups, they’ve argued that the preliminary proposals should be released sooner under the state’s Public Records Act.

Governors have refused, contending the early proposals are part of the “deliberative process” that makes them exempt from the Public Records Act until the contract is final, which they contend is when it passes the Legislature as part of the budget and becomes law.

As often happens in such arguments between the executive and legislative branches, the courts get called in to decide who’s right. In this case, a conservative group, the Citizen Action Defense Fund, filed public records request more than two years ago for the early proposals that led to the 2023-25 contracts.

The first public records request for preliminary proposals was filed after the formal negotiated contracts were submitted to the Office of Financial Management in October 2022. The director of that agency denied the request, saying they fell under the deliberative process exemption. In December, the OFM director certified the negotiated contracts as “financially feasible” for the state – a legal requirement – which meant the governor could use them in his budget proposal.

Shortly after that, the defense fund filed a lawsuit to make OFM turn over the preliminary proposals, arguing that by certifying the final contract agreements, the process was over.

A trial court ruled that the defense fund was right, but an appeals court disagreed, saying the process wouldn’t be final until the Legislature had approved a budget with the contracts in it. The Supreme Court was called to make the final decision.

Attorneys for the defense fund argued that the “deliberative process” was over as early as when the governor’s office and the unions reached an agreement but no later than when that agreement was submitted to the Legislature. The state argued it’s not over until the Legislature passes a budget with the contracts in it, and the governor signs that budget.

In an 8-1 ruling, the court said the steps leading up to the Legislature approving the budget are all part of the process that needs to take place before the state is required to release the preliminary proposals. The Legislature’s approval is not a “rubber stamp,” the court said. Without that approval, the unions and the governor’s office would have to go back to the table, so the exemption against releasing the earlier proposals would be in place until then. Only Justice Steven Gonzalez, in a concurring opinion, said it should stay in place until the governor signs the budget.

With all due respect to the court’s majority, I’m more inclined to agree with the dissenting opinion by newly elected Justice Sal Mungia.

He argued the key point in the case, as far as the Public Records Act is concerned, was not when the legislation approving the collective bargaining process was passed. It was when the negotiations were completed so the preliminary documents were no longer covered by an exemption. That happened when OFM and the unions reached a tentative agreement in October.

As a reporter, I’m almost always more likely to come down on the side of more records, sooner.

Holding back preliminary proposals until a deal is reached makes sense for both sides of the bargaining table, because both sides tend to start with high hopes and unrealistic expectations. As a former official for The Spokesman-Review’s newsroom union, I knew we wouldn’t get everything we requested and the company would push for every concession they hoped for. But once we reached an agreement, even before we sat down to officially sign the contract, I was more than happy to show anyone who asked where we started and how far we came.

Meanwhile, I was sure that the boss, who wasn’t present at negotiations, was well-informed of the give and take at the table and knew how we got to the agreement. The Legislature and the people, who are the ultimate boss in the spending of public money, deserve to have that kind of information, as soon as possible, on a key element of the biennial budget.